Thứ Hai, 25 tháng 9, 2017

According to Department of Trade Remedies (Ministry of Industry
and Trade), 2 Vietnamese products exported to Australia which are pressed
aluminum and galvanized steel have been terminated investigation and will not
subject to anti-subsidy tax by the Australian anti-dumping commission (ADC).

In August and October 2016, ADC
initiated 2 anti-dumping and anti-subsidy investigations on pressed aluminum
and galvanized steel imported from Vietnam.

Following the investigation, in June and
August 2017, ADC published the final reports of two cases in which ADC decided
to terminate the investigation and not apply anti-subsidy tax on goods from
Vietnam in both cases.

Specifically, in the case of pressed
aluminum, Vietnam is accused of subsidizing businesses in 03 programs related
to tax incentives.

After the investigation, ADC determined
that: 01 of the 03 Vietnamese companies agreeing to cooperate with ADC did not
receive any incentives from the above programs. The remaining 02 enterprises
and other producers/exporters received subsidies but the margin of subsidies is
negligible.

Therefore, ADC decided to terminate the
investigation for Vietnam.

In the case of galvanized steel, Vietnam
is alleged to subsidize businesses in 19 programs involving tax incentives,
investment incentives, support programs and trade promotion programs.

After the investigation, ADC determined
that: Vietnamese companies agreeing to cooperate with ADC only receive benefits
from 03 of the 19 programs mentioned above, and the amount of these subsidies
is negligible; the level of subsidy offered to other producers/exporters is
also negligible. Therefore, ADC decided to terminate the investigation for
Vietnam.

In terms of the anti-dumping
investigations, in the galvanized steel case, the plaintiff alleged that the
“special market conditions” is exsisted in the plated steel sector of Vietnam.
The plaintiffs argue that Vietnam has to import most of its raw materials to
produce galvanized steel, which is hot rolled coil (HRC). At the same time, the
price of HRC in the exporting country, due to the subsidy, has been distorted
(lower than it should have been).

Vietnam imports mainly this material,
so galvanized steelprices in Vietnam are also deviated as
a result, and this should be considered as a “special market condition” in Vietnam.
However, after the investigation, Australia concluded that there was no special
market condition in the plated steel industry of Vietnam.

According to the Ministry of Industry
and Trade, the ADC’s conclusion to terminate the investigation, not apply
anti-subsidy measures in two cases and the ADC concluded that no special market
situation exists for the market of plated steel in Vietnam is positive and
successful results for the Government and enterprises of Vietnam.

This final outcome is a positive precedent
for future cases, as it is the first time Australia investigated anti-subsidy
and “special market conditions” on Vietnam.

Thứ Năm, 21 tháng 9, 2017

If you want to patent
your software worldwide, you have a lot of filing ahead of you. Generally
speaking, the filing needs to be done in a relatively timely manner too, so missing
deadlines happens routinely. I would suggest consulting with an intellectual property
(IP) attorney who can help you
meet all of the necessary requirements because they can be tricky.

Filing with the patent cooperation
treaty (PCT) really will only
give you an opinion as to whether your software can be patented in the
countries that signed the treaty. This can be helpful because searching all of
the countries on your own would be troublesome. However, after the search, you
will still be without a patent.

So, if you file with the
PCT for an opinion first, you will still be left with all of the actual patent
filing to do. You will then need to file for any foreign patents that you wish
to obtain. Each patent will have separate requirements.

Again, my suggested
strategy would be to consult with an attorney. An experienced intellectual property
attorney will be able to
search for any conflicting patents and will also be able to file your patent
applications for you. You will have to pay your attorney a fee, though, and I
know that this is not ideal. But, it is possible to save money on attorney
fees.

Thứ Tư, 20 tháng 9, 2017

Vietnam
Prime Minister Nguyen Xuan Phuc asked the Ministries to research, actively
self-review to amend or proposed modifications, cutting business conditions which are not reasonable and
unnecessary.

On August
22nd 2017 , under the
chairmanship of Prime Minister Nguyen Xuan Phuc, the Government held a
legislative session to give comments on the draft law on competition (revised);
the draft law amending and supplementing some articles of the law on
environmental protection tax; draft law on administrative unit and special economic
zones; discuss on the report synthesizing the results of reviews and proposals
of ministries and agencies on the drafting of laws to amend and supplement the
laws relating to land, construction, housing, business and planning…

According to the Ministry of Planning and Investment,
there are still 4,284 business investment requirements and conditions in 243
industries under the management of 15 ministries, which are regulated in 237
legal normative documents. The Ministry of Planning and Investment proposes to
abolish all or part of the business investment conditions in finance, location,
production capacity, human resources, business methods, planning…

Vietnam Chamber of Commerce and Industry (VCCI) has
proposed to abolish 96 conditions of business and amend 13 conditions in 3
sectors: industry, transportation, science and technology.

Regarding the draft law on special administrative and
economic units aim to create legal bases for the establishment, development,
management and operation of 3 special zones namely Van Don (Quang Ninh), North
Van Phong (Khanh Hoa) and Phu Quoc (Kien Giang).

In terms of the draft law amending and supplementing a
number of articles of the Law on Environmental Protection Tax, the Prime
Minister emphasized that the role of amending and supplementing this law in the
context that environmental regulations violation is complicated. complex.
According to the Ministry of Finance – the drafting agency, the current
environmental protection tax policy has revealed some obstacles that need to be
finalized in order to ensure that this is an important economic tool,
contributing to limiting the production and use of goods that pollute the
environment, encouraging the use of environmentally friendly goods towards
sustainable development.

Commenting on the draft Law on Competition, the Prime
Minister said that the Ministry of Industry and Trade should thoroughly review
the unfair competition practices so as not to overlap with other laws.

How do patents work for cosmetics? What can be done if
there is already a patent that exists for my idea?

This is an American perspective. Patents for cosmetics
do not work very well.

A lot of the applications I see are mostly marketing
proposals “we are using all natural organic ingredients…” to do what one would
expect these ingredients to do. Well, that’s not patentable subject matter
under section 101 of the Patent Act because it is directed to a natural
compound that does not perform a surprising result.

It’s easy enough to get around this. You can add a
single non-naturally occurring preservative, but then you are not selling
something, “using all natural organic ingredients…” and that messes with your
marketing.

The next problem is that you need to have at least one
ingredient that has never been used in cosmetics before. This is really hard to
do because old patent applications in this field list thousands of
ingredients that can be combined in all quantities from 0.1 to 99%. Those
applications render almost any combination of “all natural organic ingredients”
either anticipated or obvious.

Now, if you do have a new non-naturally occuring active
ingredient, then, of course, the patent system, in conjunction with the
exclusivity provided in some instances with the FDA works really well. So well,
that other countries have started modeling the American system.

You may want to have a patent attorney take a look at
the other patents that exist in your space. It is possible that you may be able
to capture some value from those patent owners.

Thứ Năm, 14 tháng 9, 2017

A trademark class is a category in which a
trademark is put into. Each class covers certain similar goods or services
which the trademark covers. For example, class 25 covers clothing. If you apply
for a trademark and tell the trademark office that your trademark will be used
to represent shirts, for example, your trademark will be put into class 25. You
can potentially get a trademark for a name that someone already has a trademark
for, if you apply for a different class.

When you apply for a trademark, you need to
tell the trademark office what goods or services this trademark will represent.
For Before reading further, make sure you understand the basics of what a
trademark is. You should know what it means that a trademark acts as an identifier
of source. To get the 101 on trademarks, read What is a Trademark? first.

example, Coke will tell the trademark office
that the Coca-Cola trademark will be used to represent soft drinks. When people
see Coca-Cola on soft drinks, Coke wants people to know that the soft drink was
made by Coca-Cola. When approved, Coke’s trademark will prevent people from
using the Coca-Cola name on soft drinks, and anything that is similar to soft
drinks. This is because soft drinks was indicated on Coke’s trademark
application. If someone uses the name Coca-Cola on a completely unrelated
product, bookshelves for example, they may be able to do so since bookshelves
are quite different from soft drinks.

When the trademark office looked at Coke’s
trademark application for Coca-Cola, they put the trademark into class 32 which
is the class for most beverages. This is because when Coke applied for the
trademark, they told the trademark office the trademark will be used to
represent soft drinks and the trademark office knew to put the application into
class 32. Now that they have their trademark approved and put into class 32,
the class can help others determine how much protection the trademark covers.
Generally speaking, if Coke has a trademark in class 32, you likely cannot use
their trademark with any product that is also in class 32. For example, you
likely cannot use Coca-Cola to sell juices. Further, if you applied for the
trademark Coca-Cola to try and represent any product in class 32, such as
juices for example, you likely will be rejected. This is because Coke already
has a trademark for Coca-Cola in class 32, and you are trying to apply for the
same name to represent goods in the same class Coke already is in.

Generally speaking again, if you were to apply
for the same name in a different class, you may be able to get a trademark.
Let’s look at an example with the name “Dove”:

You can see above that there is a Dove soap
and there is also a Dove Chocolate, trademarks owned by two separate companies.
The simple explanation as to why they can both own trademarks for Dove is
because they have applied for trademarks in different classes. Dove owned by
Mars is in class 30 for chocolates, whereas Dove owned by Unilever is in class
3 for soaps.

However, there is a longer explanation. The
real reason that both companies can each own a trademark for Dove is not
necessarily because they have applied for goods that are in different classes,
but rather because the trademark office believes that people buying Dove
chocolate will not be confused and think that the chocolate was made by the
company that makes soap. Vice versa, the trademark office believes that people
buying Dove soap will not think the soap was made by the company that makes
chocolate. The key is that the trademark office is convinced that there is
no likelihood to cause confusion by both companies each
having the trademark for the name Dove. In other words, the main reason Dove
chocolate and Dove soap can both exist is because the trademark office
considers chocolate and soap different enough that people will not be confused
as to which company is making each. It just so happens that chocolate and soap
are in different classes, which is usually true when two trademarks of the same
name coexist, but not always.

Building on this concept, it is possible for
two people to have the same trademark and coexist in the same class.
Conversely, it is possible to apply for a trademark that already exists in one
class, but file it in a different class and get rejected. It all comes down to
whether the trademark office thinks the goods and services that are represented
by the two marks are likely to cause confusion with buyers. For example, Coke
has a trademark Coca-Cola for sodas in class 32. Tea drinks are actually part
of a different class, class 30 which is the class for tea and coffee. If you
were to apply for a trademark for Coca-Cola in class 30 for tea, do you think
you would be approved? The answer is likely not. Because tea and soft drinks
are both drinks, it is likely for buyers to be confused if you have a trademark
for Coca-Cola in class 30 and Coke has one for class 32. If you label your tea
as Coca-Cola, buyers will not be sure whether the tea was made by you, or by
Coke, and thus confused as to who made it. In this example, even though you are
applying in a different class than an existing trademark of the same name, you
are likely to be rejected. In an example of the reverse, if you are applying
for a mark in a class where another same mark already exists, you could still
get approved if you can convince the trademark office that the goods you are
selling are so different from the goods of the other mark in the same class
that there would be no confusion to buyers. However, this is generally
difficult since the trademark class system has been designed so that similar
products and services are put into the same class.

So let’s think strategy. Let’s say you start a
company called Widget and you will sell sodas and teas. You want to prevent
others from also selling sodas and teas by the name of Widget. Should you apply
for sodas in class 32 or teas in class 30? The answer, is for best protection
you should apply for both. If you have one trademark for sodas in class 32 and
another for teas in class 30, you ensure that both teas and sodas are covered.
Filing in both classes, however, requires double the fees. The trademark office
charges for each different class you file in. You may say well let me just file
in class 32 for sodas only, I should be fine since you said earlier if someone
else files for the same name in class 30 for teas they likely would be rejected
by the trademark office since teas and sodas are so similar. This may be true,
but do you want to risk it? If someone can make a convincing argument to the
trademark office that the teas they sell will not cause buyers to be confused
with the sodas you sell, they may get the trademark for teas in class 30.
Therefore, to be safe, the best way is to file for both class 32 and class 30,
and pay double the fees needed to do so. This is how the major corporations do
it. They will cover many classes to ensure that people cannot use their
trademark name on practically any good or service. As of this writing, Coke has
61 trademarks for Coca-Cola and similar variations, spanning multiple classes.

There are 45
total trademark classes. When you apply for a trademark application, you will indicate what goods and services your
trademark will represent. The trademark office will then compare your trademark
to similar trademarks and make a subjective decision as to whether your mark
and what it represents is likely to cause confusion with another mark and what
that mark represents. If the trademark office thinks there is no likelihood to
cause confusion, they will approve. otherwise, they will reject and you have an
opportunity to argue back for approval. There is no guarantee that a trademark
application will be approved as whether you are likely to cause confusion with
another mark is a subjective determination made by an examiner at the trademark
office. This is true even if nobody has the exact same name you are applying
for. The only way to get a trademark is to apply and wait for a decision by the
trademark office. To maximize your chances of approval, however, you should
apply for trademarks that are as different from existing trademarks as possible,
and list goods and services that are as different as possible from the goods
and services of existing trademarks. You also don’t get your money back if your
application is rejected or filed improperly, so best file it properly the first
time around.

Thứ Ba, 12 tháng 9, 2017

As you may know, Google
is making an effort to scan every book in the world. The goal is to create a
giant online database of every book that can be searched. One small problem is
the fact that Google is violating copyright laws.

Copyright

Google argues its book
database doesn’t violate copyright laws. The company
suggests it only shows short passages and accompanies the text with ads
showcasing where the full books can be purchased. Of course, the ads are Google
Adwords from which the company makes a tidy profit.

On Tuesday, the search
goliath rolled out stand-alone book search services in 14 countries. The same
day, the Text and Academic Authors Association (TAA) became the latest
publishers' organization to call Google's opt-out strategy backwards.

Authors, Publishers and
publishing associations are not happy. While Google only publishes the full
text of books in the public domain, it is still copying entire books for which
it has no permission. Google claims it can do this because the books are being
scanned from versions owned by public libraries. Fearing an avalanche of
lawsuits, Google backed off.

In August, Google
stopped scanning copyrighted books in
public library collections. At the same time, it gave publishers the right to
submit lists of books the publishers didn’t want scanned. As you can image,
publishers still aren’t happy.

The Arrogance of Google

Once viewed as the
underdog to giants such as Microsoft, Google continues to act like the local
school bully. In this case, the company has taken such an arrogant approach
that lawsuits are inevitable. Google is going to take a beating in the lawsuits
and here is why.

Consider the
neighborhood you live in. What if a local crime syndicate informed every
household it was going to steal everything in each household. Undoubtedly,
there would be calls of outrage. In response, what if the crime syndicate then
suggested you could send a list of items in your house that you didn’t want
stolen? This is exactly what Google is doing.

Google’s decision to
scan every book in the world is idealistic, but laughably simple minded. At a
time when the recording industry is suing teenagers for file swapping, one
would think Google would get a clue.

Thứ Hai, 11 tháng 9, 2017

The labor management is one of the most important matters in the
operation of enterprises. For the employee, he or she has to fulfill the
job requirements as per labour contract, follow internal labour regulations,
and work under the supervision of the employer. For employer, complying
with regulations include paying salary, ensuring benefits, and other
mandatory labour compliance as per labour laws and collective labour agreements
signed.

The
following recaps the labour matters and labour legal compliance according to
Vietnam labour laws:

1. To
make reports on labor use according to the provisions of Article 6, Circular
No. 23/2014/TT-BLDTBXH dated August 29th 2014 (Circular 23).

2. To
make periodical reports on the use and change of labor according to the
provisions of Point d, Clause 2, Article 6 of the Labor Code 2012 and Clause 2,
Article 8 of Decree No. 03/2014/ND-CP and Clause 2, Article 6 of the Circular
23.

3. To
make and use labor management books as guided in Article 7 of Circular 23.

7. To
develop and promulgate the Grassroots Democracy Regulation; Statute of
periodical dialogue in the workplace as stipulated in Decree 60/2013/ND-CP
dated June 19th 2013

8. To
negotiate, sign and send the Collective Labor Agreement to the provincial labor
authority in accordance with Chapter V of the Labor Code 2012, Chapter III of
Decree 05 and Article 3 of Circular 29/2015/TT-BLDTBXH dated July 31st 2015
(this is optional).

9. To
make explanatory reports on the demand for use, the procedures for the grant
and re-grant of work permits and the implementation of reporting regimes
according to the provisions of Decree No. 11/2016/ND-CP dated March 2nd 2016
and Circular 40/2016/TT-BLDTBXH dated October 25th 2016 (if employing foreign
workers).

10. To formulate and
promulgate the Regulation on evaluation of the performance of tasks as provided
in Clause 1, Article 12 of Decree 05 (This content is part of the company’s
working regulations and we must have this content to be able to unilaterally
terminate the labor contract with the employee under Clause 1, Article 38 of
the Labor Code 2012).

11. To carry out the
procedures for the establishment of a grassroots trade union organization in
accordance with the provisions of Paragraphs 1 and 3 of Article 189 of
the Labor Code 2012 and
Article 5 of the Trade Union Law 2012 (This is not mandatory but depends on the
quantity of workers want to join the union of the company).

12. To report on
occupational accidents, technical incidents causing serious unsafety and
occupational hygiene at the unit as provided in Clause 1, Article 36 of the Law
on Occupational Safety and Hygiene 2015 (if any); Periodically report on
occupational accidents according to the provisions of Clause 1, Article 24 of
Decree No. 39/2016/ND-CP dated May 15th 2016 (Decree 39).

13. To report
annually on occupational safety and health as provided in Article 10 of
Circular 07/2016/TT-BLDTBXH dated May 15th 2016

14. To declare the
fatal occupational accident or serious injury of 2 or more laborers as
stipulated in Clause 1, Article 34 of the Law on Occupational Safety and
Hygiene 2015; Article 10 of Decree 39 (if any).

15. To monitor,
manage and declare the use of machines, equipments and materials with strict
requirements on labor safety in accordance with Articles 30 and 31 of the Law
on Occupational Safety and Hygiene, Article 16 of Decree 44/2016/ND-CP dated
May 15th 2016 (Decree 44) (if any); Circular 53/2016/TT-BLDTBXH dated December
28th 2016

16. To arrange
full-time officials working in occupational safety and health in accordance
with Article 36 of Decree 39.

17. To arrange staff
to work in the health sector in accordance with Article 37 of Decree 39.

18. To provide
material allowances to laborers working under dangerous and harmful conditions
(if any) according to the provisions of Article 24 of the Law on Occupational
Safety and Hygiene 2015; Circular 25/2013/TT-BLDTBXH dated October 18th 2013

19. To review,
classify and organize occupational safety and health training for laborers as
stipulated in Article 14 of the Law on Occupational Safety and Health 2015;
Article 17 of Decree 44.

20. To organize
health examination and treatment of occupational diseases for laborers
according to the provisions of Article 21 of the Law on Occupational Safety and
Hygiene 2015.

21. To compile the
workers’ health records and labor sanitation dossiers according to the
provisions of Circular No. 19/2016/TT-BYT dated June 30th 2016

22. To allocate and monitor
personal protective devices for laborers according to the provisions of Article
23 of the Law on Occupational Safety and Hygiene 2015; Circular
04/2014/TT-BLDTBXH dated Feruary 12th 2014

23. To develop and
implement an annual plan for occupational safety and health; Occupational
safety and health regulations of the enterprise for each working area; Safe
working methods for each type of work; Control of risk and harmful factors;
Risk assessment on occupational safety and health; The plan for handling technical
incidents causing serious unsafety and emergency rescue as provided in Articles
15, 18, 76, 77 and 78 of the Law on Occupational Safety and Hygiene 2015.

24. To develop a plan
for implementation of the month of action on occupational safety and health in
accordance with Circular 02/2017/TT-BLDTBXH dated February 20th, 2017

It is important the company to
retain law firm in Vietnamwith labour expertise to avoid non
compliance and disputes to be arisen.